Reviving Privacy
In the midst of the “great 21st-century privacy giveaway,” Anita Allen makes a case for restoring our right to seclusion—whether we want it or not.

BY TREY POPP

In February of this year, an Iowa City web developer named Nick Bergus stumbled across one of the most bizarre bargains in the history of Amazon.com. For $1,495, plus $20.95 shipping, one of the online marketplace’s third-party merchants was offering a 55-gallon drum of Passion brand personal lubricant.

Bergus wasn’t the first person to find the obscene quantity hilarious. One customer review by a self-proclaimed “Fertility Specialist for Pachyderms” lauded the vat—used in concert with a Barry White CD—as “exactly what we needed to help rebuild elephant populations all over sub-Saharan Africa.” But Bergus did something a little different than write a mock review of his own. He posted the link to Facebook as a joke: “A 55-gallon drum of lube on Amazon,” he wrote. “For Valentine’s Day. And every day. For the rest of your life.”

Then, as most of us do after forwarding a stray bit of web humor, he more or less forgot about it.

A week later, as Bergus recounted on his blog, a friend sent him a screenshot of something unexpected: that 55-gallon drum, alongside the smiling face of its new spokesman: Nick Bergus. In accordance with Facebook’s terms-of-use agreement, the company had transformed his post into a product endorsement, paid for by Amazon. Soon friends from every corner of Bergus’s life (and who knows how many strangers) were seeing the advertisement—or “sponsored story,” in Facebook jargon.

Bergus expressed his annoyance with admirable restraint. “That’s what you sign up for when you make an account,” he wrote. “But in the context of a sponsored story, some of the context in which it was a joke is lost, and I’ve started to wonder how many people now see me as the pitchman for a 55-gallon drum of lube.”

For Anita Allen, the Henry R. Silverman Professor of Law and professor of philosophy, it would be hard to find a sharper example of how our notions and expectations about privacy have changed in the last century. But it’s useful to establish a baseline, and it just so happens that Allen has one at the ready.

In 1905, the Supreme Court of Georgia considered a lawsuit brought by Atlanta resident Paolo Pavesich against the New England Mutual Life Insurance Company. Without his awareness or consent, New England Mutual had used Pavesich’s photographic likeness in a newspaper advertisement. Pavesich argued that his privacy had been violated. The court agreed, and the jurists did not mince words. Their opinion situated the right to privacy within the right to personal liberty. When a man’s privacy has been invaded, they wrote, “he is no longer free, and … is in reality a slave without hope of freedom, held to service by a merciless master.”

“I love that quote,” Allen says. “That’s the very first time a US state supreme court ever recognized a right to privacy. And what did they compare it to? To slavery. Clearly, in their mind it was hugely important to recognize that privacy is this basic foundational good without which we might as well be slaves.”

Clearly Nick Bergus didn’t view Facebook’s quite similar intrusion in such stark terms. Which raises several questions. When did Americans stop caring so much about their privacy, and why? Do we truly realize how much of our personal information we’re exposing? And for all we gain by doing so—individually tailored product recommendations by Amazon, the chance to reconnect with long-lost acquaintances, Groupon discounts—what might we be losing?

Allen explores these and other questions in her latest book, Unpopular Privacy, and reaches a provocative conclusion: We are losing, or stand to lose, so much that government should foist certain types of privacy upon us even if we don’t want them.

“Privacy is so important and so neglected in contemporary life,” she contends, “that democratic states, though liberal and feminist, could be justified in undertaking a rescue mission that includes enacting paternalistic privacy laws for the benefit of uneager beneficiaries.”

When Allen calls privacy a “basic foundational good,” she puts it on par with some of the most sacred ideas in American life. “For example, we think that it’s nice to have options in the future—so things that preserve options, like education, are very basic goods,” she explains. “I think privacy, like education, is one of those things that can actually hold our futures open for us. Because in the absence of privacy, it may be the case that other people may have so much presumptive control over information about us, they have control over our lives.”

“Suppose that when you’re in your 20s,” she continues, “you load up your Facebook page and your tweets with stories about your hard-drugging and your sexual promiscuity, and your all-nighters and your lack of regard for people of other races, and your sexism and your homophobia.

“I think it’s perfectly normal for young people to experiment with their lives when they’re young,” she adds. “In the past, those experimentations and in some cases mistakes were forgiven and forgotten. But technology has meant that our current beliefs, statements, and behaviors are preserved in perpetuity. So without privacy, we don’t have the ability to keep open futures that might otherwise have been open. So suddenly I can’t run for office, I can’t be a public schoolteacher, I can’t work in a church, I can’t work in a daycare center, I can’t have a job in corporate America—because I’m associated now and for all time with behaviors and beliefs that were purely a part of my life at one point, but would otherwise be forgotten, if not forgiven.”

If it sounds like Allen thinks we need privacy protections designed to save us from ourselves, that’s part of it. But we may also underestimate our need to be saved from others. (Even others who are motivated purely by friendship, as this photo-shy writer discovered when a friend’s younger brother tagged a picture with my name on his Facebook page, whose lax privacy settings made it available to the entire Googleverse.)

The idea that the US is deficient in the area of information-privacy laws may strike some people as odd—and indeed Allen concedes that we have a “vast sweep” of existing protections. Federal statutes broadly protect the privacy of telephone and email communications, as well as the privacy and security of medical and financial information. To that list can be added school records, credit reports, motor vehicle records, computer files, video rental histories, and more. But there’s a catch. Nearly all of them permit adults to “waive or alienate their privacy rights” in each area.

“Is the right to privacy simply the right to choose privacy if we want it?” Allen asks. “Or is it also a right to experience privacy?”

In Unpopular Privacy, Allen surveys statutory and case law pertaining to a broad range of privacy-related regulations, from prohibitions on nude dancing to the coerced privacy requirements of the US military’s now-repealed “Don’t Ask, Don’t Tell” rule for gay and lesbian service members. She finds many instances—including those two—of laws whose imposition of mandatory privacy “merit suspicion as illiberal impediments to personal choice.” But when it comes to information-privacy in the era of Facebook and cloud computing, Allen advocates a more paternalistic form of protection than US lawmakers have opted for to date.

The best way into her argument is through the eyes of a child—or more accurately, through parental anxieties about children’s vulnerability on the Internet.

“I think that the first generation of Internet pioneers believed that the Internet could regulate itself, or that technology would figure out ways to make the Internet a safe and effective domain—we didn’t need government regulation,” Allen says. “Over time, we came to the conclusion that maybe children need a little more protection.”

Congress responded to that perceived need via the Children’s Online Privacy Protection Act (COPPA), which became law in 2000. COPPA prohibits commercial website operators from collecting personal information from children under 13 without first obtaining the verifiable consent of a parent or guardian. This was an aggressive response to the unarguable reality that although the Internet may be a powerful resource for education, exploration, and personal growth, it also exposes its users to any number of potential dangers, from sexual predators and emotional injury (as the rise of online bullying has shown), to financial ruin and identity theft.

“While the law [COPPA] is paternalistic, coercive and draws arbitrary lines,” Allen writes, “its moral and political legitimacy are by now scarcely in doubt.”

In the years since COPPA was conceived, much has changed in the online environment, including the rise of social networking sites like Facebook, which launched in 2004. At the same time, web-based companies have gained a powerful ability to amass our personal information as we move through the digital realm. The full extent of their capacity to learn about us is poorly understood by most adults. Joseph Turow C’72 ASC’73 Gr’76, the Robert Lewis Shayon Professor at the Annenberg School for Communication, addressed the ramifications before a Senate subcommittee (and in these pages) two years ago:

“Americans now live in a world where what we buy, what we tell our friends, how we spend our leisure time, where we walk or drive, and more is collected, analyzed, and linked to information about our gender, income, age, occupation, and other demographic information,” he wrote [“Expert Opinion,” Sept|Oct 2010]. “Companies you never heard of are creating these profiles about you without your knowledge or permission. The information is bought, sold, rented, and auctioned by entities that use it to decide what commercial messages you get, what discount coupons you receive, and what prices you pay for products and services. In the interest of attracting audiences, media firms are beginning to consider how they can use at least some of those data to tailor the news, information, and even entertainment you receive.”

One explanation for why those once-private realms are now exposed to such exhaustive scrutiny, without our knowledge, is that most of us have given legal consent for the intrusion—by clicking agree boxes for the privacy policies of the websites we frequent. A few years ago, researchers at Carnegie Mellon decided to estimate how long it would take to read the online-privacy policies (which vary widely) that the average American encounters in a year. Assuming an eight-hour workday, they concluded that it would take 76 days. Nationwide, this would represent 53.8 billion hours of our collective time—if any of us actually bothered to read them.

For Allen, this brave new world raises a question. “Are children the only population for whom the Internet poses significant difficulties?” she asks. “I think that it’s not just children for whom the technology is mysterious. And learning how it works is time-consuming and maybe beyond the ken of most of us, even most of us with PhDs.”

In other words, why limit COPPA protections to children under 13? Considering how quickly (and with how little reflection) our culture has embraced an ethos of radical self-disclosure, Allen believes the time for prudence has come. In terms of crafting robust privacy protections, that means coming to grips with a clash between some classic liberal values and the reality of how life on the Internet works.

“There’s no doubt whatsoever that freedom of contract, that great libertarian value, is not a good model for the Internet,” Allen says. “We cannot negotiate every time we go online to buy a book or a table or a shirt, or to give to charity, or to go to our children’s school to find out how they’re doing in school. Every time we go online we can’t negotiate [separately] with all of the businesses, all the government agencies. So we need to have some ground rules. And unfortunately, we’ve not seen schools and businesses and government consistently adhering to kinds of fair-information practices, or other [data-protection] norms that would ensure that we’re not going to get taken advantage of.”

Partly because everyone’s playing “technology catch-up,” Allen doesn’t think any country has figured out how to protect Internet users from peril. The European Union has a stronger data-protection framework than the United States, including restrictions on data transfer that “cannot necessarily be waived by individuals who consent to disclosure.” But the EU has lately gotten pushback from some member states who favor looser rules.

How might Congress catch up to the needs, as Allen sees them, of citizens who have fallen into the habit of opting out of privacy protections?

“Arguably stronger privacy laws would require firms seeking to disclose personal data to provide notice and consent about the use of the data on an informed opt-in basis, and forbid certain disclosures altogether. This would entail letting data subjects know in advance what a firm would like to do with their data and seek affirmative permission.” [Emphasis added.]
In recent years the world has been enthralled with quite a different idea, one sometimes characterized as “radical transparency.” As Facebook founder Mark Zuckerberg has expressed it, “More transparency should make for a more tolerant society in which people eventually accept that everybody sometimes does bad or embarrassing things.”

Whatever comes of Allen’s case for a new legal framework around information privacy, she hopes more people will come to question that formulation, and rediscover the rewards of seclusion.

“It’s interesting,” she says. “The people who were the Internet pioneers were all about the value of anonymity. Remember that first generation—they wanted anonymous unregulated opportunities on the Internet. They didn’t want radical transparency. I think this idea of radical transparency is being shoved down our throats, and the throats of young people, by large corporate concerns for whom radical transparency reaps benefits …

“The question is, what are we getting out of it? I think some of us are getting a lot of frustration, a lot of drama in our social lives. Our whole lives are like middle school playgrounds now.”

Which takes Allen one step further, remembering the playgrounds—literal and metaphorical—that shaped her into the scholar she has become. Her life, she believes, testifies to the way the experience of privacy, in and of itself, can be an engine for creativity and moral strength.
“My intellectual life has been so enriched by privacy,” she muses.

“Being able to seclude myself from other people, being able to have those quiet—even secret—moments, has been the number one thing which has made it possible for me to be the successful scholar that I’ve grown up to be. But for those opportunities in childhood to move away from the hullabaloo of the family and the neighborhood, to read, to write and reflect in my journal ... those kinds of moments for reflection, for rumination, for reading, for internal debate and discussion, for prayer—those things were enormously important for shaping me into the academic I’ve become.”

At the end of Unpopular Privacy, after citing the prudent if self-interested advice of John Adams that it pays to hide things whose disclosure would lead to disgrace or dishonor, Allen brings up the well-known (if less well-heeded) passage in the Gospel of Matthew concerning almsgiving. In it Matthew counsels almsgivers not to “sound a trumpet before you, as the hypocrites do … so that they may be praised by others. Truly, I tell you, they have received their reward.”

For Allen, that is a commentary on the most profound value of privacy.

“The Bible represents the privacy of certain kinds of ritual acts as being important because, in effect, if you’re bragging about the fact that you’re helping the poor, or that you’re pious, you’ve already got your reward: being able to manipulate peoples’ opinions about you,” she says. “But there’s something good about giving to the poor even if no one knows you’re doing it, something good about fasting and being prayerful even when no one knows you’re doing it. And privacy, to me, is kind of like that. It’s one of those things that just being the reserved, modest person, it’s a good character trait—whether or not other people observe it within you.”
She hopes that our prying, confessional culture will see the pendulum swing toward the rediscovery of those deep rewards—and laments what might happen if it does not.

“I think that young people today who are deprived of those opportunities, because of the constant interruption, and expectations of social media, and a noisier busier world,” she begins, and then pauses. “It’s going to be a little harder for kids to develop the kinds of intellectual lives and scholarly virtues that society has come to rely upon, for our creative artists and scientists and philosophers.”